Breaking Free: How AB 124 Creates New Asylum Paths
Domestic violence asylum cases have historically faced significant legal barriers in the United States justice system, often leaving survivors trapped between criminal convictions and deportation risks. Previously, individuals fleeing intimate partner violence had limited pathways to legal protection, especially when their trauma led to criminal charges. Now, California's Assembly Bill 124 (AB 124) represents a groundbreaking shift, creating crucial legal protections for survivors navigating both criminal and immigration systems.
This landmark legislation fundamentally transforms how the legal system addresses cases involving trauma survivors by expanding affirmative defenses, creating sentencing relief mechanisms, and establishing new pathways for vacating convictions. Furthermore, these changes particularly benefit immigrant survivors who previously faced deportation based on convictions directly connected to their victimization. For many survivors, AB 124 consequently offers a new chance at safety and stability by addressing the complex intersection of criminal justice, immigration law, and trauma recovery.
Legal Barriers Faced by Domestic Violence Survivors Before AB 124
Prior to AB 124, survivors of domestic violence navigated a legal system that criminalized their trauma rather than recognizing it as mitigating evidence. This systematic failure created nearly insurmountable barriers for those seeking domestic violence asylum and protection from deportation due to criminal convictions stemming from their abuse experiences.
Lack of trauma-informed sentencing considerations
Before AB 124, California's legal framework lacked clear mechanisms to ensure judges received information about a survivor's experience of trauma during court proceedings [1]. Despite evidence showing up to 90% of adolescents and 75% of adults in the criminal legal system report at least one traumatic childhood event [2], trauma-informed sentencing recommendations remained rare [3].
Courts frequently disregarded the connection between prior victimization and criminal behavior. For trauma to mitigate sentencing, courts required both acceptance that abuse occurred and establishment of a direct connection between the abuse and the offense [3]. However, judges often viewed an inability to control violent impulses as grounds for harsher sentencing based on community protection concerns, rather than recognizing it as a symptom of prior victimization [3].
Additionally, survivors were often barred from discussing years of trauma during trials. One survivor recounted: "At trial I was barred from discussing the years of trauma, fear and violence. Antiquated laws meant my truth was silenced" [4]. This silence effectively erased the context needed for fair adjudication.
Ineligibility for vacatur under prior statutes
Before recent reforms, vacatur relief was severely limited. The previous law only allowed human trafficking victims to petition for vacating nonviolent offense arrests or convictions if they could prove by clear and convincing evidence that the arrest or conviction was a direct result of their victimization [5]. Moreover, survivors of intimate partner violence or sexual violence were completely excluded from these protections [5].
The limited statutory framework created a cycle where survivors remained trapped with criminal records that created barriers to:
- Employment and housing security
- Educational opportunities
- Financial assistance
- Citizenship status and immigration relief [6]
For immigrant survivors, these limitations were especially devastating. Convictions for offenses such as prostitution could render non-citizens inadmissible and barred from eligibility for immigration relief, while drug convictions could make them deportable and ineligible for most types of immigration protection [1]. Without mechanisms to vacate these convictions, survivors faced nearly certain deportation despite their victimization status.
Disproportionate incarceration of women of color
The criminalization of domestic violence survivors has disproportionately affected women of color. Black women make up 25% of California's incarcerated population despite being only 5% of the adult population [1][1]. Similar disparities exist for other communities of color, including Latinx and indigenous populations [1][7].
A Stanford University survey revealed that nearly 75% of women incarcerated in California for murder or manslaughter had experienced intimate partner violence in the year before their offense [4]. Despite this connection, the system routinely failed to consider how victimization contributed to criminal behavior.
Women entering the criminal justice system face unique challenges. Studies indicate that 86% of women in jail report experiencing sexual violence in their lifetime, 77% report partner violence, and 60% report caregiver violence [8]. Rather than receiving support, these survivors are frequently criminalized for defending themselves, for crimes committed under coercion, or for substance use as a trauma response [8].
The consequences extend beyond incarceration itself. Nearly 80% of women in jail are mothers, and most are single parents [9]. As a result, criminalizing survivors perpetuates intergenerational cycles of trauma and separation from children.
Affirmative Defense Expansion Under AB 124
Assembly Bill 124 fundamentally reshapes California's legal landscape by expanding critical protections for survivors seeking domestic violence asylum and relief from criminal charges. This legislation acknowledges the complex relationship between victimization and criminal behavior through comprehensive affirmative defense provisions.
Inclusion of intimate partner and sexual violence survivors
AB 124 significantly broadens the scope of California's affirmative defense provisions beyond human trafficking victims. For the first time, the law explicitly recognizes and protects survivors of intimate partner violence and sexual violence within the criminal justice system. This expansion represents a critical acknowledgment that various forms of victimization often contribute to criminal behavior.
The Justice for Survivors Act, as AB 124 is also known, creates a more humanizing and trauma-informed response to criminal adjudication by ensuring courts consider the full context of experiences that contributed to a survivor's actions or inactions [10]. This expansion addresses a critical gap in protection for intimate partner violence survivors who previously had no statutory recognition of how their trauma might contribute to criminal behavior.
Statutory changes to Penal Code § 236.23 and § 236.24
AB 124 implemented two major statutory modifications that directly benefit survivors. Firstly, it amended Penal Code § 236.23 to allow the coercion defense to apply to serious felonies or human trafficking charges when the defendant was a human trafficking victim at the time of the offense and had a reasonable fear of harm [11]. This represents a significant expansion, as previously this defense did not apply to serious felonies.
Secondly, the legislation added an entirely new section—Penal Code § 236.24—which establishes a parallel affirmative defense for intimate partner violence and sexual violence survivors [12]. Under this section, individuals can assert as a defense that they were "coerced to commit the offense as a direct result of being a victim of intimate partner violence or sexual violence at the time of the offense and had a reasonable fear of harm" [13]. Nevertheless, this defense cannot be applied to violent felonies as defined in Section 667.5(c) [13].
The defendant bears the burden of establishing this affirmative defense by a preponderance of the evidence [13]. Importantly, certified court records or documentation from governmental agencies confirming a person's status as a victim can be presented to establish the affirmative defense [13].
Application in plea negotiations and trial strategy
AB 124 fundamentally alters trial strategy and plea negotiations through several key provisions. Firstly, the legislation requires prosecutors to consider victim status as mitigation during plea bargaining [11]. This consideration must include factors such as:
- Whether the person experienced psychological, physical, or childhood trauma
- If the person was a youth at the time of the offense
- Whether the person was a victim of intimate partner violence, sexual violence, or human trafficking [13]
This statutory mandate changes trial dynamics by requiring consideration of mitigating circumstances that might otherwise be overlooked. The affirmative defense can be asserted at any time before entering a plea or before the conclusion of trial [13].
Overall, if a defendant successfully establishes the affirmative defense, they become entitled to comprehensive relief, including sealed records, release from all penalties and disabilities resulting from the charge, and the right to state they have never been arrested for or charged with the crime in question [13]. These provisions create powerful incentives for defense attorneys to thoroughly investigate and document clients' histories of victimization as part of their defense strategy.
Sentencing and Re-sentencing Relief Mechanisms
California's AB 124 establishes vital sentencing and re-sentencing mechanisms that create crucial pathways for domestic violence asylum seekers caught in the criminal justice system. These provisions offer unprecedented relief for survivors whose trauma contributed to their criminal behavior.
Presumption of lower-term sentencing under Penal Code § 1170(b)(6)
Effective January 1, 2022, AB 124 amended Penal Code § 1170 to require courts to impose the lowest possible sentence term for individuals whose circumstances contributed to their offense. This applies specifically when:
- The person experienced psychological, physical, or childhood trauma
- The individual was under age 26 at the time of the offense
- The person was a victim of intimate partner violence or human trafficking
Unlike earlier sentencing frameworks that granted courts broad discretion, this new provision creates a presumption favoring the lower term. Courts may only deviate from the lower term "if the aggravating circumstances outweigh the mitigating circumstances [and] imposition of the lower term would be contrary to the interests of justice."
Notably, this provision applies retroactively to all non-final cases on direct appeal, as established in People v. Banner (2022). This retroactive application has proven significant for survivors seeking relief from excessive sentences imposed before the law took effect.
Re-sentencing petitions under Penal Code § 1172.1
AB 124 strengthens re-sentencing pathways through amendments to Penal Code § 1172.1 (formerly § 1170(d)). This section allows courts to recall sentences and re-sentence defendants "in the same manner as if they had not previously been sentenced."
Re-sentencing petitions may be initiated in several ways:
- By the court on its own motion within 120 days of commitment
- At any time if sentencing laws change through new statutory authority
- Upon recommendation by the Department of Corrections, Board of Parole Hearings, or district attorney
The court must consider post-conviction factors including the defendant's disciplinary record, rehabilitation efforts, and evidence that continued incarceration no longer serves justice. Importantly, the court must also evaluate whether trauma, intimate partner violence, or youth status contributed to the commission of the offense.
Youth and trauma as mitigating factors
AB 124 specifically recognizes youth and trauma as critical mitigating factors. For sentencing purposes, "youth" includes anyone under 26 years old at the time of the offense. Although youth alone doesn't automatically trigger the lower-term presumption, courts must consider whether it was "a contributing factor in the commission of the offense."
Mental illness may qualify as "psychological trauma" when it contributes to criminal conduct. In People v. Banner, the court noted that "mental illness alone" does not trigger the lower term presumption, but "psychological trauma based on mental illness may be a circumstance qualifying for the lower term presumption."
This recognition of trauma represents a fundamental shift in California's approach to sentencing, acknowledging the complex relationship between victimization and criminal behavior that often affects domestic violence survivors seeking asylum.
Vacatur and Post-Conviction Relief for Survivors
AB 124 creates powerful post-conviction pathways through vacatur provisions that offer survivors a chance to clear their criminal records completely. Vacatur—unlike traditional expungement—treats the conviction as if it never occurred, essentially nullifying its existence and providing comprehensive relief for those seeking domestic violence asylum.
Penal Code § 236.14 and § 236.15 eligibility criteria
Penal Code § 236.14 permits human trafficking survivors to petition courts for vacatur relief, while § 236.15 extends identical protections to intimate partner violence and sexual violence survivors. To qualify under either statute, petitioners must establish by clear and convincing evidence that:
- They were victims at the time the nonviolent offense was committed
- The offense was a direct result of their victimization
- They are making good faith efforts to distance themselves from the trafficking scheme or perpetrator
- Vacatur serves the interests of justice
Both statutes explicitly limit relief to nonviolent offenses, meaning any crime not listed in Penal Code § 667.5(c). In practice, this includes all misdemeanors and most felonies [14]. After a successful petition, the court orders all records sealed and ultimately destroyed, typically within three years from arrest or one year after the court order is granted [13].
Legal defect requirement for immigration effect
For vacatur to eliminate immigration consequences, it must be based on a procedural or substantive defect in the underlying criminal proceeding—not merely for rehabilitative or humanitarian reasons [1]. This standard, established in Matter of Pickering, means that without proper language in the vacatur order, immigration authorities may still consider the conviction valid for deportation purposes.
Many survivors have faced deportation because their California vacaturs lacked specific language addressing legal defects, creating what advocates describe as "a two-tiered system where citizens who obtain a vacatur under these statutes are entitled to complete relief while non-citizen victims may have their state vacaturs ignored" [7].
Pre-2023 vs Post-2023 vacatur language
Accordingly, California amended both statutes effective January 1, 2023, to require courts to make an explicit finding that "the person lacked the requisite intent to commit the offense" and that the conviction was "invalid due to legal defect at the time of the arrest or conviction" [1]. This critical language change ensures that when courts vacate convictions under these statutes, the vacatur explicitly addresses a substantive defect.
The pre-2023 statutory language failed to specify that relief was based on a substantive defect in the underlying arrest or conviction [15]. Since January 2023, the revised language acknowledges that trauma from victimization "demonstrates that the person lacked the requisite intent to commit the offense," thus establishing the legal defect needed to satisfy federal immigration authorities [7].
Immigration Implications and Relief Pathways
For immigrant survivors of domestic violence, AB 124's vacatur provisions offer critical protection from deportation. Indeed, old criminal convictions can trigger removal proceedings years later, even for long-term residents with families in the U.S. [16]. Properly vacated convictions under the amended statutes now explicitly address legal defects by stating "the person lacked the requisite intent to commit the offense" [16], a key requirement for immigration authorities to recognize the vacatur.
Avoiding deportation through vacated convictions
Once a conviction is properly vacated with language addressing substantive defects, immigration courts should dismiss removal charges for legal permanent residents whose deportability was based solely on that conviction [16]. Even undocumented individuals benefit from vacatur, as it may restore eligibility for discretionary relief previously barred by certain convictions [16].
Eligibility for T visas, U visas, and VAWA
Several immigration pathways exist for domestic violence survivors:
The U visa aids victims of qualifying crimes, including domestic violence, who have suffered substantial abuse and assist law enforcement [8]. With annual limits of 10,000 visas for principal applicants [8], it provides four years of legal status plus work authorization.
T visas protect human trafficking victims, with 5,000 annual visas available [3], offering more generous public benefits than other options [3].
VAWA self-petitions allow abused spouses or children of U.S. citizens or permanent residents to obtain legal status independently from their abuser [2].
Referral strategies for immigration legal aid
Effective advocacy requires connecting survivors with specialized legal support. Organizations like the Immigrant Survivors Project [17] and HIAS-PA [18] provide free immigration legal services specifically for domestic violence survivors. Successful referrals typically involve collaboration between criminal defense attorneys and immigration specialists to ensure vacatur orders contain proper language for immigration purposes.
Conclusion
AB 124 represents a transformative shift in California's approach to survivors caught between criminal justice and immigration systems. Throughout this article, we examined how this groundbreaking legislation dismantles long-standing barriers for domestic violence survivors seeking asylum and protection from deportation. Previously, survivors faced a legal system that criminalized their trauma rather than recognizing it as mitigating evidence.
The law addresses this injustice through three primary mechanisms. First, it expands affirmative defense provisions to explicitly include survivors of intimate partner and sexual violence, acknowledging the complex relationship between victimization and criminal behavior. Second, it creates a presumption of lower-term sentencing when trauma, youth, or victim status contributed to the offense. Third, it establishes comprehensive vacatur pathways that treat qualifying convictions as if they never occurred.
Perhaps most significantly for immigrant survivors, the 2023 amendments ensure vacated convictions explicitly address substantive legal defects—a critical requirement for immigration authorities to recognize the vacatur. This change consequently removes deportation threats based on convictions directly stemming from abuse.
AB 124 therefore acknowledges what research has long demonstrated: trauma profoundly impacts behavior, and the criminal legal system must consider this reality. Women of color, disproportionately affected by criminalization despite victimization histories, stand to benefit significantly from these reforms.
The legislation also bridges a critical gap between criminal defense and immigration advocacy. Survivors now have pathways to both vacate convictions and preserve eligibility for humanitarian immigration protections like U visas, T visas, and VAWA self-petitions.
Undoubtedly, AB 124 offers a new framework for addressing the complex intersection of domestic violence, criminal convictions, and immigration status. Though challenges remain, this legislation marks an important step toward a more trauma-informed legal system that recognizes survivors deserve protection rather than punishment. For many, AB 124 offers what they have long sought: a chance at safety, stability, and freedom from both their abusers and legal systems that previously failed them.
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Yuliya Kelmansky is an Expert Criminal Defense Attorney who has over 10 years of practice defending a variety of criminal cases.
